On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act). The first briefs in the cases will be filed tomorrow, on January 22. In advance of those filings, the blog has published a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases. This is the final post in that series.

If the Court were to hold that the petitioners in Hollingsworth v. Perry — the Proposition 8 initiative sponsors — do not have Article III standing to appeal, what then? What would become of the judgments below, and of Proposition 8 more broadly?

The Supreme Court presumably would reverse and vacate the judgment of the U.S. Court of Appeals for the Ninth Circuit, since the Proposition 8 proponents were also the only parties to appeal to that court from the district court judgment. If that were to happen, the Ninth Circuit’s opinion would no longer have precedential effect that would govern future cases challenging California’s (or any other state’s) refusal to recognize same-sex marriages. (In any event, it is likely the court of appeals will next consider the issue of same-sex marriage not in a California case but instead in a case coming up from Nevada. Because the prohibition in Nevada law does not reverse a previous right to same-sex marriage in that state, the rationale of the Ninth Circuit’s opinion in Perry would not be directly applicable to the Nevada case, regardless of whether the Perry decision retains any precedential value. That Nevada case will instead require the court to decide whether the Fourteenth Amendment permits Nevada to afford same-sex couples all of the benefits and responsibilities of marriage (under the moniker of “domestic partnerships”), but to deny them the status of state-sanctioned “marriage” itself.)

But what about Judge Walker’s judgment and injunction in the district court in Perry? What would become of that?

Most likely, nothing — it would stand. In the district court, the named defendant state and local officials did appear, and there was complete Article III adversity between them and the plaintiffs. Judge Walker’s injunction was entered against the named defendants, and it altered the legal relationship between them and the plaintiffs. Therefore it should remain intact.

So what effect does that injunction have? It reads as follows: “Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution.” (That would be Proposition 8, which provides: “Only marriage between a man and a woman is valid or recognized in California.”)

What would it mean if that injunction remained in place?

Well, for one thing, it would mean that the two couples who sued in Perry — Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo — would receive marriage licenses from the defendant Clerks of Alameda and Los Angeles Counties, respectively.

But would the injunction have any further effect, on other same-sex couples in California?

It shouldn’t — not of its own force, anyway.

It is not clear from the face of the injunction whether Judge Walker intended it to apply only to the defendants’ treatment of the two plaintiff couples, or whether Judge Walker instead intended to prohibit the defendants from denying marriage licenses to any same-sex couples in California.

To the extent the injunction is understood to apply to couples other than the named plaintiffs — which is what the parties in the court of appeals appeared to assume — the Supreme Court could use this case as an opportunity to clarify that district court judges generally do not have the power to issue injunctions that protect persons other than the parties before them.

District court judges occasionally assume that if they declare a law to be invalid, they have the power to enjoin state or federal officials from implementing it across the board, not only with respect to the plaintiffs seeking relief, but also as applied to other persons who are not parties to the suit. But as the Ninth Circuit itself has repeatedly explained (in, for example, Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011), and the cases cited therein; and in Meinhold v. U.S. Department of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994)), that is not so, unless the case is a class action or a broader injunction is necessary to ensure that the plaintiffs receive complete relief. See also U.S. Department of Defense v. Meinhold, 510 U.S. 939 (1993).

[UPDATE: In their briefing subsequent to this post, the parties all appear to agree that Judge Walker’s injunction is best construed to also guarantee non-party same-sex couples the right to receive California marriage licenses. The Proposition 8 defenders agree with me (see p.18 of their brief) that if the injunction is so construed, Judge Walker exceeded his remedial authority, because district court judges generally do not have the power to issue injunctions that protect persons other than the parties before them, absent a class action or a case in which a broader injunction is necessary to ensure that the plaintiffs receive complete relief. The Proposition 8 challengers disagree, as do the City and County of San Francisco, who argue at page 19 of their brief that the two same-sex plaintiff couples themselves would be harmed if the injunction were limited to their own licenses because California’s continued denial of marriage to other same-sex couples would have a “stigmatizing” effect even on married couples such as the plaintiffs by “marking them as second-class citizens.”

The Proposition 8 challengers have also raised a related issue that I neglected in my post: Even if it is arguably the case that Judge Walker lacked the authority to issue an injunction beyond the two plaintiff couples, both the private-party challengers (p. 18 of their brief) and the San Francisco respondents (p.19 of their brief) argue that because no party with standing appealed to challenge the scope of that injunction, the Court need not and should not address it. (The San Francisco brief goes further, arguing that the Supreme Court “has no jurisdiction to consider [petitioners’] objections to the scope of the district court’s injunction.”) This somewhat arcane issue — whether the Court can and should address the scope of Judge Walker’s injunction in the event it dismisses the petition on standing grounds — is an issue to watch for in the Proposition 8 defenders’ reply brief (to be filed on March 19) and at oral argument on March 26.]

If the Court (or the Ninth Circuit on remand) were to clarify that Judge Walker’s injunction remains in place but that it offers relief only to the two plaintiff couples, California officials will then have a decision to make about how to proceed in other cases, assuming they continue to be of the view that Proposition 8 is unconstitutional. They could, for example:

— Decide not to enforce Proposition 8 across the board, based upon the determination of the relevant state official(s) that it violates the Fourteenth Amendment. (I assume this would be the Governor and/or the Secretary of State; but I do not know the extent to which they have the power under California law to direct County Clerks how to respond to requests for marriage licenses.)

— Do what they did in Perry in every case — namely, deny a marriage license to a same-sex couple, refuse to contest the subsequent request for judicial relief, and then decline to appeal. (This middle option doesn’t have much to recommend it, quite frankly.)

or

— Take a page from the federal executive, i.e., “enforce-but-don’t-defend,” but also continue to take whatever steps are necessary, including filing notices of appeal, to bring a well-framed case before the Supreme Court for ultimate resolution . . . and thereafter act in accord with the Court’s ultimate resolution.

There is a burgeoning scholarship, and debate, about which of these steps — or, for that matter, the option of simply trying to defend the law notwithstanding the Governor’s public determination that it is unconstitutional — is appropriate and under what circumstances. But that’s a topic we can air further next summer, in the event the state officials are confronted with such a choice. [UPDATE: Moreover, as a reader notes, the whole enforcement question could be mooted out in the short run, in the event the California electorate votes for repeal of Proposition 8 on the November 2014 ballot if the Court does not affirm.]

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.